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DG C

EN

COUNCIL OF

THE EUROPEAN UNION

Brussels, 14 December 2009

Interinstitutional File:

2008/0223 (COD)

17472/09

ENER 443
ENV 893
CODEC 1449

NOTE
from :

General Secretariat of the Council

to :

COREPER

Subject :

Draft DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL on the energy performance of buildings (Recast)
- Adaptations resulting from the entry into force of the Treaty on the Functioning

of the European Union (TFEU)

1.

The text of the draft Directive on the energy performance of buildings was agreed with

Parliament on 17 November 2009

1

, on the understanding that the adaptations to the text

necessitated by the entry into force of the Lisbon Treaty would be agreed later. The

adaptations proposed by the Presidency were discussed in the Energy Working Party and are

reflected in Annex, in the second column, with new text reflected in bold underlined.

2.

Article 5(1) of the draft Directive foresees that the Commission must establish by 30 June

2011 a comparative methodology framework for calculating cost-optimal levels of minimum

energy performance requirements for buildings - using the "regulatory procedure with

scrutiny". Some concern was voiced on the replacement of the "regulatory procedure with

scrutiny" by a "delegated act under Article 290 of the Treaty on the Functioning of the

European Union (TFEU)" instead of by an "instrument of implementation according to

Article 291 TFEU", on the grounds that the establishment of this methodology framework is

extremely important (since Member States will be expected to apply this framework) and

national experts should therefore be consulted during the preparatory phase; the possibility to

only object ex post would not suffice.

1

see doc. 16407/09

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In reply, the Commission assured delegations that every care would be taken to consult

experts and stakeholders in order to prepare a proposal that has every chance of not being

objected to by Parliament and Council, and referred to the Communication COM (2009) 673

"Implementation of Article 290 of the TFEU" which has since become available and which

confirms in point 4.2 "Preparatory work for the adoption of delegated acts" that experts and

stakeholders will be consulted. Several delegations have since announced that the assurances

given by the Commission in the Communication will probably be sufficient for them, and it

was furthermore highlighted that Parliament will likely oppose the use of Article 291.

In the Presidency's view, in the context of Article 5(1), the proposed 5-year (extendable)

duration of the delegation as specified in Article 20a is appropriate in order to provide the

possibility for updating and/or improving the methodology framework.

3.

It is recalled that Article 10(7c), according to which the Commission shall adopt a voluntary

common EU certification scheme for the energy performance of non-residential buildings,

contains a reference to a non-PRAC comitology procedure (advisory procedure). Based on the

discussions at working group level it is the Presidency's view that this provision requires no

adaptation (other than technical adaptations to recital 22 and Article 10 (7c)), see Annex II of

doc. 17477/09.

4.

Coreper is invited to confirm that the text in Annex, in the second column, can be used as a

basis for reaching agreement with the European Parliament on the adaptations to the draft

Buildings Directive that result from the entry into force of the TFEU.

___________________

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ANNEX

Text of doc. 16407/09 (pre-Lisbon Treaty)

New text

THE EUROPEAN PARLIAMENT AND THE

COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the

European Community, and in particular Article

175(1)

thereof,

Having regard to the proposal from the

Commission,

Having regard to the opinion of the European

Economic and Social Committee

1

,

Having regard to the opinion of the Committee

of the Regions

2

,

Acting in accordance with the procedure laid

down in Article 251 of the Treaty

3

,

Whereas:

THE EUROPEAN PARLIAMENT AND THE

COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning

of the European Union, and in particular Article

194(2) thereof,

Having regard to the proposal from the

European Commission,

Having regard to the opinion of the European

Economic and Social Committee

4

,

Having regard to the opinion of the Committee

of the Regions

5

,

Acting in accordance with the ordinary

legislative procedure []

6

,

Whereas:

(2)

The natural resources, to the prudent and

rational utilisation of which Article 174 of the

Treaty refers, include oil products, natural gas

and solid fuels, which are essential sources of

energy, but also the leading sources of carbon

dioxide emissions.

(2)

[] An efficient,

prudent, rational and

sustainable utilisation of energy [] applies inter

alia to oil products, natural gas and solid fuels,

which are essential sources of energy, but also

the leading sources of carbon dioxide emissions.

(11) This Directive is without prejudice to

Articles 87 and 88 of the Treaty. Therefore the

notion of incentive used in this Directive should

not be interpreted as including state aid.

(11) This Directive is without prejudice to

Articles 107 and 108 of the Treaty. Therefore

the notion of incentive used in this Directive

should not be interpreted as including state aid.

1

OJ C […], […], p. […].

2

OJ C […], […], p. […].

3

OJ C […], […], p. […].

4

OJ C […], […], p. […].

5

OJ C […], […], p. […].

6

OJ C […], […], p. […].

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(22) The measures necessary for the

implementation of this Directive should be

adopted in accordance with Council Decision

1999/468/EC of 28 June 1999 laying down the

procedures for the exercise of implementing

powers conferred on the Commission

1

.

(22) The measures necessary for the

implementation of this Directive should be

adopted in accordance with Article 3 and 7 of

Council Decision 1999/468/EC of 28 June 1999

laying down the procedures for the exercise of

implementing powers conferred on the

Commission

2

..

(23)

In particular, power should

[…] be conferred on the Commission to

adapt to technical progress certain parts of

the general framework set out in Annex I

[…] , to establish a […]

methodology framework for calculating

cost-optimal levels of minimum energy

performance requirements […] . Since

those measures are of general scope and are

designed to amend non-essential elements of this

Directive, they must be adopted in accordance

with the regulatory procedure with scrutiny

provided for in Article 5a of Decision

1999/468/EC.

(23)

The Commission should be

empowered to adopt delegated acts in

accordance with Article 290 of the Treaty in

respect of the adaptation to technical

progress of certain parts of the general

framework set out in Annex I, […]

and

in respect of the establishment of a

methodology framework for calculating cost-

optimal levels of mininmum energy performance

requirements […] .

Article 1

Objective

Subject matter

Article 1

Objective

Subject matter

Note: insert at the end:

The requirements in this Directive are

minimum requirements and shall not prevent

any Member State from maintaining or

introducing more stringent protective

measures. Such measures shall be compatible

with the Treaty. They shall be notified to the

Commission.

1

OJ L 184, 17.7.1999, p. 23.

2

OJ L 184, 17.7.1999, p. 23.

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Note: this insertion is necessary in order to
reflect the text of the Article 176 of the 'old'
Treaty, which had to be read together with
Article 175 (the 'old' legal basis of this
Directive) and which stated: "The protective
measures adopted pursuant to Article 175 shall
not prevent any Member State from maintaining
or introducing more stringent protective
measures. Such measures must be compatible
with this Treaty. They shall be notified to the
Commission."

Article 5

Calculation of cost-optimal levels of minimum

energy performance requirements

1.

The Commission shall establish by

[…]

30 June 2011 a comparative

methodology framework for calculating

cost-optimal levels of minimum energy

performance requirements for buildings

and […] building elements .

The comparative methodology framework

shall be established in accordance with

Annex IIIa and shall differentiate between

new and existing buildings and between

different categories of buildings.

Those measures designed to amend non-

essential elements of this Directive by

supplementing it shall be adopted in accordance

with the regulatory procedure with

scrutiny referred to in Article […]

21(2) .

Article 5

Calculation of cost-optimal levels of minimum

energy performance requirements

1.

The Commission shall establish by

means of delegated acts in accordance with

Articles 20a, 20b and 20c by 30 June

2011 [] a comparative methodology

framework for calculating cost-optimal

levels of minimum energy performance

requirements for buildings and […]

building elements .

The comparative methodology framework

shall be established in accordance with

Annex IIIa and shall differentiate between

new and existing buildings and between

different categories of buildings.

[…]

Article 10

7c. (new) The Commission shall, by 2011, in

consultation with the relevant sectors, adopt a

voluntary common European Union certification

scheme for the energy performance of non-

Article 10

7c. (new) The Commission shall, by 2011, in

consultation with the relevant sectors, adopt a

voluntary common European Union certification

scheme for the energy performance of non-

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residential buildings. This measure shall be

adopted in accordance with the procedure

referred to in Article 21(3)]. Member States are

encouraged to recognise or use the scheme, or

use part thereof by adapting it to national

circumstances.

residential buildings. This measure shall be

adopted in accordance with the procedure

referred to in Article 21(2). Member States are

encouraged to recognise or use the scheme, or

use part thereof by adapting it to national

circumstances.

Article 20

Adaptation of framework Annex I to technical

progress

Points 1 and 2 of the Annex I shall be reviewed

at regular intervals, which shall not be shorter

than two years.

ΠPE-CO_S 3654/08 (2002/91 adapted)

(adapted)

new

The Commission shall adapt

Adaptations

of points 13 and 24 of the Annex I to this

Directive to technical progress.

Article 20

Adaptation of framework Annex I to technical

progress

Points 1 and 2 of the Annex I shall be reviewed

at regular intervals, which shall not be shorter

than two years.

ΠPE-CO_S 3654/08

(2002/91 adapted)

(adapted)

The Commission shall adapt

Adaptations

of points 13 and 24 of the Annex I to this

Directive to technical progress by means of

delegated acts in accordance with Articles

20a, 20b and 20c .

Article 20a

Exercise of the delegation

1.

Without prejudice to the deadline

referred to in Article 5(1), the powers to

adopt the delegated acts referred to in

Articles 5 and 20 shall be conferred on the

Commission for a period of 5 years following

the entry into force of this Directive. The

Commission shall make a report in respect of

the delegated powers at the latest 6 months

before the end of the 5 year period. The

delegation of power shall be automatically

extended for periods of an identical duration,

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unless the European Parliament or the

Council revokes it in accordance with Article

20b.

2.

As soon as it adopts a delegated act, the

Commission shall notify it simultaneously to

the European Parliament and to the Council.

3.

The powers to adopt delegated acts are

conferred on the Commission subject to the

conditions laid down in Articles 20b and 20c.

Article 20b

Revocation of the delegation

1.

The delegation of power referred to in

Articles 5 and 20 may be revoked by the

European Parliament or by the Council.

2.

The institution which has started work

in view of deciding whether to revoke the

delegation of power shall inform the other

legislator and the Commission at the latest

one month before the final decision is taken,

stating the delegated powers which could be

subject to revocation and the reasons for a

revocation.

3

The decision of revocation shall put an

end to the delegation of the powers specified

in that decision. It shall take effect

immediately or at a later date specified

therein. It shall not affect the validity of the

delegated acts already in force. It shall be

published in the Official Journal of the

European Union.

Article 20c

Objections to delegated acts

1.

The European Parliament and/or the

Council may object to the delegated act

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within a period of 3 months from the date of

notification.

2.

If, on expiry of that period, neither the

European Parliament nor the Council has

objected to the delegated act, or if, before that

date, the European Parliament and the

Council have both informed the Commission

that they have decided not to raise objections,

the delegated act shall enter into force at the

date stated in its provisions.

3.

If the European Parliament or the

Council objects to the adopted delegated act,

it shall not enter into force. The institution

which objects shall state the reasons for

objecting to the delegated act.

Article 1421

Committee procedure

1.

The Commission shall be assisted by a

Committee.

2.

Where reference is made to this paragraph,

Article 5a(1) to (4) and Article 7 of Decision

1999/468/EC shall apply, having regard to the

provisions of Article 8 thereof.

3. Where reference is made to this paragraph,

Articles 3 and 7 of Decision 1999/468/EC shall

apply, having regard to the provisions of Article

8 thereof.

Article 1421

Committee procedure

1.

The Commission shall be assisted by a

Committee.

[]

2. Where reference is made to this paragraph,

Articles 3 and 7 of Decision 1999/468/EC shall

apply, having regard to the provisions of Article

8 thereof.

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